Citation Nr: 1525464
Decision Date: 06/15/15 Archive Date: 06/26/15
DOCKET NO. 13-34 063 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ryan Frank, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1968 to November 1969.
This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the New York, New York Department of Veterans Affairs (VA) Regional Office (RO).
In August 2014, the Veteran testified at a hearing at the RO before the undersigned.
Review of the documents in the Veteran's Virtual VA electronic claims file reveals the transcript of the August 2014 Board hearing. Review of the Veterans Benefits Management System (VBMS) paperless claims processing system reveals no records.
FINDINGS OF FACT
1. In the absence of a timely perfected appeal, the March 1988 Board decision, which denied entitlement to service connection for a bilateral ear disorder, is final.
2. The evidence submitted since the March 1988 Board decision, by itself, or when considered with the previous evidence of record, raises a substantial possibility of substantiating the claim of entitlement to service connection for tinnitus.
3. The evidence is approximately evenly balanced as to whether tinnitus is related to in-service noise exposure.
CONCLUSIONS OF LAW
1. The March 1988 Board decision is final. New and material evidence sufficient to reopen the claim of entitlement to service connection has been submitted. 38 U.S.C.A §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (2014).
2. With reasonable doubt resolved in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. In light of the fact that the Board allows the benefit sought, discussion of the notice and assistance requirements of the VCAA and a detailed explanation of how VA complied with the Act is unnecessary. See 38 C.F.R. § 3.159.
New and Material Evidence
Generally, a claim that has been denied in a final unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(b). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a previously disallowed claim, VA shall reopen the claim and review its former disposition.
New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. Id.
In March 1988, the Board denied the Veteran's claim for entitlement to service connection for a bilateral ear disorder. Board decisions are final as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100(a). This denial, therefore, immediately became final and new and material evidence is necessary to reopen it. 38 C.F.R. § 20.1105. Moreover, there was no appeal from that decision.
The Board found in its March 1988 decision that the Veteran had failed to demonstrate a nexus between his bilateral ear disorder and any in-service disease or injury. The evidence received since the March 1988 denial includes a November 2010 medical opinion from a private physician, stating that the appellant's tinnitus is related to noise exposure during his active service. The evidence received since the Board's denial also includes several lay statements indicating that the Veteran began to complain of ringing in his ears upon returning home from Vietnam. As this new evidence bears directly on an issue that was an element of the Veteran's claim previously found lacking, reopening is warranted.
Service Connection
The Veteran contends that tinnitus resulted from noise exposure while serving in Vietnam.
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110.
Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a disability; medical evidence or, in certain circumstances, lay evidence of the in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b).
The Veteran indicated during the February 2012 VA examination and the August 2014 Board hearing that he experiences ringing in the ears. As the Veteran is competent to testify on this question, and there is no contrary evidence, he has met the current disability requirement. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). In addition, the Veteran's statement that he was exposed to loud noise from artillery in service is consistent with his service as a field artilleryman. He has therefore met the in-service injury requirement. See 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the places, types, and circumstances of service as shown by service record).
As to whether the current tinnitus is related to or had its onset in service, the February 2012 VA examiner opined that tinnitus was unrelated to service and the November 2010 private physician opined that tinnitus was related to extensive noise exposure in service. The Veteran stated during the VA examination and the Board hearing that tinnitus had its onset during service. The Veteran also submitted lay statements indicating that he began to complain of ringing in his ears upon his return from Vietnam. The Board finds this testimony and these statements competent and credible.
As there is competent evidence both for and against the contention that tinnitus had its onset in service, the evidence is approximately evenly balanced as to whether the disorder is related to in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits.").
ORDER
New and material evidence having been submitted, the claim of entitlement to service connection for tinnitus is reopened.
Entitlement to service connection for tinnitus is granted.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs